HKSAR v. YIU CHI YAN PETER

HCMA623/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.623 OF 2001

(ON APPEAL FROM WSCC 3639 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence. The appellant was convicted on his own plea before Mr White at Western Magistracy of an offence of possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390.

2. The appellant was found in possession of videos and photographs showing explicit sexual acts, including intercourse between adults and children as young as six years old. Those materials were contained in CD-ROM form.

3. The appellant possessed, apparently, sophisticated computer equipment and he admits he intended to swap this material with other like-minded people over the internet.

4. He had once sold the same material over the internet through an accessible website, but that had been some years before, and the learned magistrate sentenced the appellant on the basis that his intended publication of the material was not for profit.

5. A starting point of 30 months' imprisonment was reduced, on the basis of the appellant's plea of guilty, to a sentence of 20 months' imprisonment.

6. The appellant appeals, on two basis, that :

(1) The sentence imposed was too severe.

(2) The magistrate did not give any credit in mitigation to the appellant's family difficulties. Those difficulties being that his father has diabetes and has on at least one occasion fainted and that his mother has had a cancer removed from her throat in 1999 and has to undergo six monthly-examinations in this regard.

7. That information was not put before the learned magistrate at the time of sentencing although, as these events predated the offence, it was apparently available.

8. I will deal with the second basis of the appellant's appeal first. The health difficulties of the appellant's parents are unfortunate but in my view, they are not of the degree which would have warranted the magistrate's consideration on humanitarian grounds. Presumably that is why they were not advanced before him.

9. In any event, even if they had been of such a serious nature or degree so as to warrant such consideration, they were not advanced before the magistrate at the time of sentencing. In my view, an appellate court would be slow to give merit to such a ground of appeal without good reason being shown as to why, as mitigation, these matters were not put before the magistrate. No such good reason has been put before me today.

10. In short, I am quite satisfied there is no merit in this ground.

11. The further basis advanced for this appeal is that the sentence was too severe. The maximum custodial penalty for this offence is three years' imprisonment. The learned magistrate adopted a starting point of 30 months' imprisonment. Counsel for the appellant argued that was too high.

12. In my view, that was not too high. Counsel suggested that there were worst case scenarios imaginable for this sort of offence. No doubt that is true. There always are. But as the learned magistrate said in his reasons for sentence :

" The material which I considered to be at or near to the worst case, involved images which could only appeal to the sickest members of our community.

Further it was of such an extreme nature that it was seen as likely to have caused physical and or psychological harm to the youngsters involved. It must also be said that most if not all of these young persons had no ability to control what had happened to them.

... they were the victims of uncaring and ruthless exploitation."

Those comments are, in my view, succinct and accurate.

13. Counsel for the appellant further argued that the facts of the present case are distinguishable from those in HKSAR v. Hiroyuki Takeda HCMA315/1998. Mr Recorder Ching Y. Wong, S.C., in that case, was dealing with an offence pursuant to the same provisions as the present case where the facts involved photographs dealing with child pornography and necrophilia. In his judgment, there was nothing excessive or wrong in principle with the starting point of sentence of 30 months' imprisonment for a first offender.

14. He said :

" In this case, I am totally satisfied that a deterrent both in personam and in rem are justified. The court must discharge its duty and bring home loudly and clearly to the Appellant and the public that such or similar behaviour will not be tolerated and that those who do transgress will be dealt with severely and without mercy.

In all the circumstances, nothing said on the Appellant's behalf or about the case has caused me the slightest hesitation that the starting point of 30 months and the concurrent terms of 21 months passed by the learned Magistrate was anything but proper."

With those sentiments, I agree.

15. Counsel for the appellant argued that the facts of Hiroyuki Takeda's case were more extreme than those of the present case as the former case involved necrophilia. I do not think a ranking of this sort is practical or desirable.

16. Suffice it to say that the learned magistrate, in the present case, cannot be criticized when he said the material before him was regarded by him as being "at or near to the worst case". He was entitled on the material before him to arrive at that finding of fact.

17. In my judgment, the learned magistrate, in adopting a starting point of sentence of 30 months' imprisonment, acted properly, given the serious nature of this offence.

18. In my view, this sort of offence must involve the offender being aware that he is a participant in and a contributor to an industry that involves the corruption of children. The production and publication of this sort of material is now made much easier to do with impunity since the inception of the internet and undermines our society's fundamental values.

19. The existence of such an industry is incomprehensible to almost all of us. What is not incomprehensible is that for the protection of children in our society, people caught participating in the spread or production of this sort of material must be punished in a way that deters both them and others from these offences.

20. In my judgment, any substantial quantity of material of this sort involving children, even in the possession of a first offender, would properly attract a starting point of sentence of 30 months' imprisonment under the present sentencing provisions.

21. But let me say this; I am not sure that the present maximum penalty for this offence is sufficient. It presently ranks on a lesser level than unlawfully abstracting electricity or taking a motor car without authority.

22. Given the increasing quantity and depravity of this material reaching the court and the increasing ease of publishing it on the internet, in my view, the present maximum penalties could well be reviewed.

23. This appeal is dismissed.